CRLA/928/2007 of Bollarapu Gangaram, Vs The State of A.P., on 30 December 2010

THE HON'BLE SRI JUSTICE K.C. BHANUAND

THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO

CRIMINAL APPEAL No.928 OF 2007

JUDGMENT:(Per Hon'ble Sri Justice K.C. Bhanu)

This Criminal Appeal, under Section 374(2) of the Code ofCriminal Procedure, 1973 (for short, "Cr.P.C."), is directed against thejudgment, dated 18.04.2007, in Sessions Case No.769 of 2006 on thefile of II Additional Sessions Judge, Jagtial, Karinmanagar,whereunder and whereby, the appellant/sole accused was found guiltyof the offence punishable under Section 302 of the Indian Penal Code,1860 (for short, “I.P.C.”) and accordingly, convicted and sentenced toundergo rigorous imprisonment for life.

2. The brief facts that are necessary for disposal of the prosecutioncase may be stated as follows:

The accused is no other than the son of the deceased BollarapuLasmavva. PW.1 is the husband of the deceased. They were allresiding in a house at Uppumadugu Village, Raikal Mandal,Karimnagar District. On 05.12.2005 at about 08:00 AM, while PW.1was taking tea, the accused demanded his mother to cook chicken andhis mother stated that she could not cook the chicken. Furious overthe same, the accused picked up a cart peg from the nearby place andgave a blow on the head of the deceased. As a result, the deceasedfell down with bleeding injuries. Immediately, she was shifted to theGovernment Hospital, Jagtial. While undergoing treatment, shesuccumbed to the injuries. PW.1 went to the Police Station andlodged Ex.P1 – report. PW.8 registered the case and sent the FirstInformation Report to all concerned, including original First InformationReport to Court concerned. PW.9 took up investigation and conductedinquest on the dead body of the deceased in the presence of PW.7and others. Later, he visited the village and observed the scene ofoccurrence. After inquest, the dead body of the deceased wassubjected to post-mortem examination by PW.5, who found a lacerated wound on the left parietal area of the head. On 06.12.2005, he arrestedthe accused and sent to the Court for remand. After receipt of relevantdocuments and completion of investigation, PW.9 filed chargesheet.

3. The trial Court framed the following charge against the accused:"That, on or about 05-12-2005, at about 08:00 AM, at Uppumadugu Village, you committedmurder by intentionally causing the death of yourmother, Bollarapu Lasmavva, by beating her with acart peg indiscriminately on her head, left hand andstomach on the ground that she refused to preparechicken curry for you, and that thereby you havecommitted an offence punishable under Section 302I.P.C.""That, on or about 05-12-2005, at about 08:00 AM, at Uppumadugu Village, you committedmurder by intentionally causing the death of yourmother, Bollarapu Lasmavva, by beating her with acart peg indiscriminately on her head, left hand andstomach on the ground that she refused to preparechicken curry for you, and that thereby you havecommitted an offence punishable under Section 302I.P.C."

When the above charge was read over and explained to the accusedin Telugu, he pleaded not guilty and claimed to be tried.

4. To substantiate the charge, the prosecution examined PWs.1 to9 and got marked Exs.P1 to P7 besides case property M.O.1.

5. After closure of the prosecution evidence, the accused wasexamined under Section 313 Cr.P.C. with reference to theincriminating circumstances appearing against him in the evidence ofprosecution witnesses. He denied the same and no evidence eitheroral or documentary was adduced on his behalf.

6. The trial Court accepting the evidence of PWs.1 and 2, found theaccused guilty of the offence punishable under Section 302 I.P.C. andaccordingly, convicted and sentenced him as stated above. Challenging the same, the present Criminal Appeal is filed.

7. Now the point for determination is whether the prosecutionproved its case against the accused for the offence punishable underSection 302 I.P.C beyond all reasonable doubt and whether thejudgment of the trial Court is correct, legal and proper?

8. Learned counsel for the appellant contended that the presenceof PWs.1 and 2 at the time of incident is doubtful, since they wereresiding in a room by the side of scene of occurrence, where thedeceased and her son were staying; that the accused is suffering withunsoundness of mind; that because of unsoundness of mind, theincident had taken place; that father of accused himself admitted that the accused had taken treatment for his mental disorder in a mentalhospital before the incident in question; that the accused had nointention to kill his mother; that upon a sudden quarrel, he picked up acart peg and gave a single blow on the head of the deceased, whichresulted in causing the fatal injury; and that therefore, he prays to setaside the impugned judgment.

9. On the other hand, learned counsel representing the learnedPublic Prosecutor contended that the evidence of PWs.1 and 2, whoare father and junior paternal uncle of the accused respectively, wouldgo to show that it is accused who beat the deceased with a cart peg onthe head and because of the head injury, she died at about 10:15 AM,within two hours after the incident; that there is no evidence to showthat the accused was actually suffering from mental insanity as on thedate of commission of the offence; that in the absence of any evidenceto prove that the accused is insane person, the trial Court rightly foundhim guilty and there are no grounds to interfere with the conviction andsentence recorded by the trial Court and hence, he prays to dismissthe Criminal Appeal.

10. There is no dispute about the scene of occurrence. PW.7, who isone of the mediators present at the time of conducting inquest over thedead body of the deceased, categorically stated that the dead body ofthe deceased was found lying in the house of the deceased and thatthe descriptive particulars of the scene of occurrence have beenclearly mentioned in Ex.P5 - Crime Details Form and Ex.P6 - RoughSketch of the scene of occurrence. They are not seriously disputed.

11. PW.5 is the doctor who conducted Autopsy on the dead body ofthe deceased and found a lacerated wound 2" x 1/2" x 1/4" on the leftparietal area and bleeding from both ears. The injury is ante-mortem. On dissection, he found fracture on left temporal bone and of occipitalbone and opined that the cause of death was due to head injury.Therefore, from the medical evidence coupled with the evidence ofPW.1, homicidal nature of death of the deceased is established.

12. It is a case of matricide. PW.1 is the father of the accused. Thedeceased is no other than wife of PW.1. PWs.1 and 2 are thebrothers. PW.2 is residing by the side of the house of the deceasedand PW.1. PW.1 stated that on the date of the incident, while he was

taking tea, at about 08:00 AM, the accused demanded the deceased tocook Chicken curry; the deceased refused to cook Chicken curry onthat day; due to the same, the accused picked up a cart peg, MO.1,which was readily available and beat her on the head; as a result, thedeceased sustained bleeding injury and died on the same day inGovernment Hospital, Jagtial. In view of the fact that the incident hadtaken place at about 08:00 AM, presence of PW.1 at the scene ofoccurrence is quite natural and probable. He was taking tea at thatpoint of time and at that time, the accused asked his mother to cookChicken curry.

13. PW.2, who is residing adjacent to the house of PW.1, rushed tothe scene of occurrence and he also stated that at about 08:00 AM,when the deceased was cooking food, the accused demanded her tocook Mutton curry and as she failed to cook the same, the accusedbeat her with MO.1, and as a result, the deceased received bleedinginjuries. If really PWs.1 and 2 have not witnessed the incident, theybeing the close relatives of the accused, would not have implicated theaccused falsely. More so, PW.1, who is no other than father ofaccused, would not have testified against his son and involve him in acase of this nature.

14. No doubt, there is discrepancy with regard to the kind of the currythat was demanded by the accused to cook, but, at the same time, thatwould not be a ground to discredit the evidence of both witnesses. The genesis of the occurrence started when the accused asked hismother to cook a non-vegetarian food. Whether it is mutton or chicken,it makes no difference. Furthermore, within three hours after theincident, PW.1 lodged a report with PW.8. PW.8 has categoricallystated that on 05.12.2005 at about 11:00 AM, he received Ex.P1 -complaint from PW.1 and basing on the same, he registered a case. The evidence of PW.8 remained unchallenged.

15. It is not the case of the accused that Ex.P1 was brought intoexistence after due deliberations. As seen from the recitals in Ex.P1,PW.1 has categorically stated that on the date of complaint at about08:00 AM, while his wife was cooking, the accused demanded her tocook chicken curry and when she stated that there was no money topurchase chicken, how the chicken curry would be prepared, then hetook up a cart peg and beat on the head of the deceased. Therefore, the earliest version as stated in Ex.P1, is completely in corroborationwith the evidence of PW.1. Investigation commenced immediately afterregistration of case. Therefore, the recitals in Ex.P1 can be used tosupport the evidence of PW.1 under Section 157 of the IndianEvidence Act, 1872.

16. Further, PW.6, who is residing near the house of theaccused, deposed that after hearing the cries from the house of thedeceased at about 08:00 AM, he proceeded towards the house and he saw the accused running away from the scene of occurrence. Fromthe evidence of PWs.1, 2 and 6, it is clearly established that it is theaccused and noneelse, who is the assailant of the deceased.

17. Now it is to be seen whether the accused has committed theoffence under insanity or unsoundness of mind. No doubt, whenever aplea has been taken by the accused, the burden is on him to establishthe same. It must be pleaded and proved that he was suffering frominsanity or unsoundness of mind at the time of commission of offence.He can prove the same by adducing necessary evidence, or byeliciting about insanity in the cross-examination of the prosecutionwitnesses. PW.1 has simply stated that before the incident on oneoccasion the accused was sent to Mental Hospital, Hyderabad, fortreatment and at the time of giving evidence also the condition of theaccused was not good. Even assuming the said statement is to beaccepted as true, that is not enough to show that the accused wassuffering with insanity as on the date of incident. A person is notresponsible for criminal conduct, if at the time of such conduct, as aresult of mental disease or defect, he lacks substantial capacity eitherto appreciate the criminality of his conduct or to conform his conduct tothe requirements of law under Section 84 I.P.C. On this aspect, it ispertinent to refer to a decision reported in Dahyabhai Chhanganbhai Thakkar v. State of Gujarat[[1]],wherein it is held thus:

““The doctrine of burden of proof in the context of theplea of insanity may be stated in the followingpropositions (1) The prosecution must prove beyondreasonable doubt that the accused had committedthe offence with the requisite mens rea; and theburden of proving that always rests on theprosecution from the beginning to the end of the trial.(2) There is a rebuttable presumption that theaccused was not insane, when he committed the crime, in the sense laid down by S. 84 of the IndianPenal Code: the accused may rebut it by placingbefore the Court all the relevant evidence – oral,documentary or circumstantial, but the burden ofproof upon him is no higher than that rests upon aparty to civil proceedings. (3) Even if the accusedwas not able to establish conclusively that he wasinsane at the time he committed the offence, theevidence placed before the Court by the accused orby the prosecution may raise a reasonable doubt inthe mind of the Court as regards one or more of theingredients of the offence, including mens rea of theaccused and in that case the Court would be entitledto acquit the accused on the ground that the generalburden of proof resting on the prosecution was notdischarged.””

From the above decision it is clear that it is at the time of offence theaccused was incapable of knowing what is right and wrong and if it isproved about the insanity of accused, then it can be said that he wassuffering from mental illness. Furthermore, there is a procedurecontemplating under Cr.P.C. when an accused is actually sufferingfrom unsoundness of mind. Therefore, in the absence of anyevidence, it cannot be said that at the time of incident, the accusedwas incapable of knowing what is right or what is wrong andcommitted the act, which is punishable under law. Therefore, as thereis no evidence to show that the case of the accused falls under Section84 I.P.C., consequently, the benefit of unsoundness of mind cannot beextended to him.

18. Nextly, it has to be seen whether accused committed thematricide. The second part of Section 304 I.P.C. applies to this case asthe deliberate assault where the act of assault can be separated fromthe injury caused with the result that knowledge of likelihood to causedeath can be proved without intention to cause vital injury beingestablished. It is slightly lesser class of offence where there isknowledge that the act is likely to cause death, but where the intentionto cause death is not present. The act of the accused is preceded bypetty quarrel and the reason for the quarrel is that the deceasedrefused to cook chicken curry. On that the accused, who was an youngman, became infuriated and picked up a cart peg available in thehouse, and beat a single blow on the head of the deceased, which proved to be fatal. He has not repeated the blows and he has nottaken any undue advantage of the situation. Therefore, in view of thefact that the cart peg is a dangerous weapon and head is a vulnerablepart of the body, knowledge can be attributed to him that any blow onthe head may likely to yield deadly result. Therefore, it is not a case,which falls under any one of four clauses under Section 300 I.P.C., butit is a case, which falls under Exception 4 of Section 300 I.P.C. Thesaid Exception can apply only if all the four conditions laid down viz. (i) absence of premeditation (ii) there must be a sudden fight (iii) thekilling must be in the heat of passion upon a sudden quarrel (iv) theoffender should not have taken undue advantage or acted in a cruel orunusual manner, are satisfied. Hence, the accused is liable forconviction for the offence punishable under Section 304 Part II I.P.C.So, the conviction and sentence under Section 302 I.P.C., recordedagainst the appellant/accused are liable to be set aside, but we findhim guilty for the offence punishable under Section 304 Part II I.P.C.

19. In the result, the conviction and sentence recorded by the IIAdditional Sessions Judge, Jagtial, Karimnagar, in Judgment, dated18.04.2007, in Sessions Case No.769 of 2006, against theappellant/accused for the charge under Section 302 I.P.C., are setaside. However, the appellant/accused is found guilty of the offencepunishable under Section 304 Part II I.P.C. and accordingly, he isconvicted and sentenced to undergo rigorous imprisonment for aperiod of five years. Period of remand underwent by theappellant/accused during the course of investigation, trial and afterconviction shall be given set off under Section 428 Cr.P.C.

20. The Criminal Appeal is, accordingly, partly allowed to the extentindicated above.

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K.C.BHANU, J

____________________________

N.R.L.NAGESWARA RAO, J

December 30, 2010MD

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

THURSDAY, THE THIRTIETH DAY OF DECEMBERTWO THOUSAND AND TEN

PRESENT

THE HON'BLE SRI JUSTICE K.C. BHANUAND

THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO

CRIMINAL APPEAL No.928 OF 2007

Between:

Bollarapu Gangaram

..... APPELLANT

AND

State of Andhra Pradesh

....RESPONDENT

The Court made the following:

THE HON'BLE SRI JUSTICE K.C. BHANUANDTHE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO

CRIMINAL APPEAL No.928 OF 2007(Per Hon'ble Sri Justice K.C. Bhanu)

December 30, 2010

[1]AIR 1964 SC 1563